Brian Frosh sought to become the “people’s lawyer” when he ran for Maryland attorney general four years ago. He has found the office, he told a lively WDC crowd at Normandie Farms on April 10, to be a powerful tool for protecting Marylanders, improving their lives, and delivering justice.
Frosh became attorney general (AG) after serving five terms as a senator, and two as a delegate, representing Montgomery County District 16. As chair of the Senate Judicial Proceedings Committee for 12 years, he helped pass Maryland’s tough gun safety laws, stronger domestic violence protections, a ban on drilling for oil and gas in the Chesapeake Bay, and legislation to hold utility companies accountable for poor service and unreasonable rates.
Frosh brought his passion for justice and fairness to his work as attorney general. The early accomplishments he cited included:
Improving the Pretrial Justice System: “When I became AG, a public defender study showed that more than 17,000 people had been languishing in jail in a five-year period because they could not come up with the $500 required to post for a $5,000 bail,” Frosh noted. Reform legislation he had introduced as a senator had failed. But as AG, he asked the rules committee of the Maryland Court of Appeals to amend the rules, requiring that non-dangerous arrestees who are not deemed a flight risk be released on their own recognizance. Any judge or magistrate imposing bail had to determine the arrestee’s ability to pay. Despite a fierce challenge from bail bondsmen, the rules are working well. Crimes committed by those on release, as well as failures to appear in court, have remained steady or decreased somewhat.
Opposing Generic Drug Price Gouging: Prices for off-patent generic drugs have skyrocketed in recent years. One study showed increases of more than 100 percent in 25 percent of a typical market basket of common generics, and another documented increases of 1000 to 5000 percent in some 40-, 50-, or 60-year-old drugs. At the urging of Frosh’s office, the Maryland General Assembly passed a first-in-the-nation law outlawing price gouging in generic drugs—unconscionable increases that can’t be explained by increased manufacturing or marketing costs. After the legislature adjourned, the drug companies sued Frosh, who has won two rounds in in court, and is optimistic that he will successfully defend this new law. (Note: On April 13, the U.S. Court of Appeals for the Fourth District struck down the Maryland law, misinterpreting the scope of the statute, according to Frosh, who is now evaluating options for next steps.)
“But I know you want to hear about Trump,” Frosh quipped, ticking off a long list of his office’s challenges to what he described as the president’s disrespect for the rule of law:
- Amending Maryland Law on AG Powers: Because of a quirk in the Maryland constitution, the AG did not have common law powers to sue on behalf of the citizens of the state to protect their welfare. When Donald Trump issued his Muslim ban shortly after taking office, Frosh asked the General Assembly to give him the authority to sue on behalf of Maryland, which it granted within two weeks, enabling him to join states led by Washington, Hawaii, and New York in suing the Administration to oppose the (unconstitutional) second Muslim ban.
- Challenging Trump Assaults on the Affordable Care Act (ACA): Maryland sued to prevent the Trump Administration’s efforts to give employers control over whether to provide contraceptive coverage to their employees, violating the ACA requirement that employers provide this coverage with no out-of-pocket costs.
- Challenging Scott Pruitt’s War on the Environment: Maryland has sued Pruitt over his refusal to implement Obama-era regulations on greenhouse gases such as methane, as well as a series of regulations governing emissions for cars, trucks, and appliances, and for other efforts to undo climate protections now in place.
- Opposing Administration Undermining of the Census: Maryland has sued to prevent the administration from including questions about citizenship in the Census questionnaire. The Constitution, said Frosh, requires an actual enumeration of the number of people in the United States. Studies have shown that asking people about their citizenship drives down participation. Areas like Maryland, with large numbers of immigrants, stand to lose billions in aid for transportation, education, health, and other support that is based on population.
- Challenging Trump’s Violations of Emoluments Clauses: Maryland has joined DC in suing the administration for violations of the emoluments clauses—our first anti-corruption laws—which forbid any federal official from receiving any gift or emolument of any kind from a foreign government. Under the law, the president can receive only his salary (now $400,000) from the U.S. or any state. But every day, said Frosh, President Trump receives emoluments from foreign governments and corporations in Malaysia, India, Afghanistan, and Saudi Arabia, and China, which abruptly awarded Trump a trademark on his name, which Chinese courts had denied for ten years, when Trump announced his support for the “one China” policy. Trump’s Post Office Pavilion hotel, which heavily markets to diplomats, rakes in billions from foreign governments. A March ruling by federal judge Peter J. Messitte affirmed that Maryland and DC have standing to pursue their lawsuit.
“These are very dark times,” said Frosh, “with great threats to our democracy. We have a president who demonizes women, immigrants, and people with disabilities. In my lifetime, I have seldom seen such turmoil. But I remember Bobby Kennedy’s historic speech in Indianapolis the night Martin Luther King was assassinated. Kennedy said what we need is not division or violence or lawlessness—but love, compassion, and justice for those suffering in our country. That is what my office stands for, and we will keep fighting—and suing—for what is right.”
Wide-ranging questions for Attorney General Frosh included: (1) How do you make decisions on what issues to pursue, (2) What is so bad about Governor Larry Hogan, (3) Why are we paying the Department of Justice to defend Trump, (4) How do you think the Supreme Court will rule on the Maryland redistricting plan, (5) Has Maryland joined public interest groups in suing for civil rights, (6) How are you working to prevent and prosecute scams against the elderly, (7) Are you pursuing Facebook’s theft of personal data from Marylanders, and (8) How do you view the status of the judiciary?
Q&A with Brian Frosh
1. How do you anticipate where the “openings” are for democracy to be eroded and get out ahead of them? How do you make those decisions early on?
A. The most dangerous thing about Donald Trump is that he thinks he is above the law and does not respect the rule of law. When we see him threatening to fire Robert Mueller, for example, and there is no check on him in Congress, it falls to us [state attorneys general] to be the last check and invoke the judiciary to invoke the law to force the Trump Administration to abide by the law. We try to spread it out so that one AG will lead on one issue and others on other. But it is very difficult—especially when we have these relentless challenges with Scott Pruitt, Betsy DeVos, and Ryan Zinke defying the law on so many issues at once. Resources are limited. But we try to prioritize but make sure that when significant threats present themselves, we challenge and respond.
2. People seem to think there is not much wrong with Governor Hogan. So what’s so bad about Governor Hogan?
He has not conducted himself like a governor. He was the point person for the Ehrlich [Governor Robert Ehrlich] team that went from state agency to agency and purged Democrats. Ehrlich got tossed out for his aggressive actions. Governor Hogan has been operating under the assumption that if he just avoids fights except those he wants to engage in (like when does school start—before or after Labor Day), he can cruise to reelection. His agencies do not respond to proposals, and he is an expert at blaming other people. It’s hard to put into words anything of significance that he has accomplished. He has caught the end of the train on issues like Metro—and Maryland has come up with just enough to keep it going. He held back on that for three and a half years but has now jumped on and is taking the credit. He killed the Baltimore Red Line, which is crucial for people in Baltimore to get to where the jobs are.
On crime, his solution is back to the ‘80s—more mandatory minimums and increasing the penalties (let’s say from 20 to 40 years) when the judges are sentencing people to 20 for those crimes. It has been an administration of non-leadership and very little accomplishment. Except for lower tolls on the Bay Bridge and opening school later, there isn’t much, and he blames others when there is nothing to show for his stewardship.
3. Why are we paying the Department of Justice to defend Trump (against lawsuits charging him with violations of the federal emoluments clause)?
A. DOJ defended him because we sued him as President. The Justice Department argued that he is doing these acts in his official capacity, but Judge Messitte (see emoluments case) pointed out he is profiting as an individual, and that is why we amended the complaint to sue him as an individual because he is profiting as an individual. He can’t commit these acts unless he is President, so that is why the Justice Department defended him.
3. What is likely to happen with the Supreme Court considering the MD Congressional redistricting plan?
A. The plan has been challenged three times and upheld. I think the Supreme Court took it because they wanted to consider a Republican and Democratic plan at the same time. No one would be happier than I if they came up with an alternative plan, but experts are skeptical that they will be able to do that.
4. Has Maryland joined public interest groups in advocating and suing for civil rights?
A. Yes, we have joined the ACLU and others in such actions. Maryland has established a Consumer Finance Protection Commission (of which I am a member), and they make recommendations to the General Assembly to fill the hole left by the non-working of the federal Consumer Financial Protection Bureau. The bill that enshrines these provisions in (state) law passed yesterday. It gives additional funding to the attorney general and the Commissioner of Financial Protection to enforce the laws on the books, including violations of the Consumer Protection Law—against deceitful acts and misleading acts. But it does not now include abusive acts. For example, we recently learned about the case of an elderly gentleman who bought a car from an unscrupulous individual. He couldn’t drive the car off the lot, but it was not against the law in Maryland for this individual to convince him to buy the car. However, it will be in a few months, as of October 1. The new law also increases the penalties that can be imposed under the Consumer Protection Act—to $10,000 per violation from the current penalty of $1,000 per violation. The U.S. Consumer Financial Protection Bureau is now being run into the ground under [its director] Mick Mulvaney, and we are trying to make up for that.
5. How do you go after scams that target the elderly—because so many of the perpetrators are out of state?
A. We do cooperate with law enforcement all across the country, but many of these scams are based out of the country. For example, the Nigerian scam, grandson scam, the IRS scam are often based in other countries. We always urge people just to hang up on these calls. Call the IRS on your own, and don’t respond to anyone who calls you by phone. Don’t wire money, use your credit card, send a check, or send gift cards. These are all difficult to trace and the crimes difficult to enforce.
6. Is Maryland looking into the issues surrounding the data stolen from Facebook?
A. Yes, and so are all states. Lots of private information was illegally harvested. Facebook was not as protective as they should have been with our personal information. Cambridge Analytica’s acts are even more egregious. They had offices in the U.S., and there will be many efforts expended to hold them accountable.
7. What are your views on the status and role of the judiciary in these challenging times?
A. Yes, the judiciary seems to be the last bulwark of democracy. Most people appointed to the federal bench are qualified and take the law seriously. Trump sent some terrible nominees, and some were not weeded out, but by and large, most judges try to follow the law and make judgments accordingly. They are our last hope.